TTAB Finds "STREAM THEATERS" Generic For .... Guess What?

The Board affirmed a refusal to register the proposed mark STREAM THEATRES on the Supplemental Register for, inter alia, the streaming of audiovisual material during in-person events at movie theaters and other venues [STREAM disclaimed], finding the term to be generic for the services. "Consumers, in the context of Applicant's services . . . would understand the term STREAM THEATRES to refer to theatres where entertainment is streamed." In re Christian J. A. O. Faloye and John C. R. Cato, Serial No. 90260733 (December 1, 2023) [not precedential] (Opinion by Judge Karen S. Kuhlke).

Examining Attorney Caroline Wood first refused registration under Section 2(e)(1) on the ground of mere descriptiveness. Applicants then filed an Amendment to Allege Use and requested registration on the Supplemental Register, leading the Examining Attorney to refuse registration under Sections 23(c) and 45 on the ground of genericness.

The Board found that that the identification of services in the application appropriately set forth the genus of services at issue. The record included definitions of the words STREAM, STREAMING, and THEATRE and excerpts from third-party websites using the terms “stream[ing]” and “theater[re].

Applicant principally relied on the limitation restricting its services to "in-person" events that take place at theaters and other venues, pointing out that the Examining Attorney's evidence showed us of the terms only in connection with streaming to private venues. The Board agreed that this evidence was "not fully on point."

However, while the evidence of usage presented by the Examining Attorney references a different streaming type of service (streaming to private venues), it does show that streaming, a key aspect of Applicants’ services, is generic for the service of streaming. These uses do serve to show how a consumer would understand the word STREAM in connection with a service that provides streaming to refer to a key aspect of the services. Similarly, the evidence shows consumers’ understanding of activity in a theater being streamed to private venues -- “stream theater” is used generically to refer to that service. Here, the service is the reverse, streaming content at the theater, but use of these words together in this context also refers to the activity (stream) and venue (theatre).

Applicant argued that none of the evidence showed use of its mark "as a whole," but the Board observed that it "may consider the understood meanings of portions of Applicants' [proposed mark] as a step in the process towards our ultimate finding of whether the proposed mark, as a whole, is generic for Applicants' services." 

The Board found that the dictionary definitions combined with applicants' specimens sufficed to establish that STREAM THEATRES "would be understood by consumers to refer to the genus of the services, providing streaming at in-person events in a theater." 

Applicants have already disclaimed the word STREAM on the Supplemental Register. What remains is the word THEATRES and the combination STREAM THEATRES. THEATRE is generic for a key aspect of the services, i.e., they are provided at in-person events at movie theatres and other venues.

The Board rejected applicants' contention that that the proposed mark presents an incongruous combination or a meaning "beyond their generic meanings that tell a consumer streaming takes place in a theater." Furthermore, even if applicants were the first or only users of the term, that does not support registration of generic wording. And the “fact that there is no evidence of third-party use of the precise term [STREAM THEATRES] is not, by itself, necessarily fatal to a finding of genericness.”

Overall, the evidence shows STREAM THEATRES names the services or at a minimum refers to the key aspects of the services, streaming in a theater.  Thus, Applicants’ proposed mark is generic for the identified services.

And so, the Board affirmed the refusal.

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Text Copyright John L. Welch 2023.